1. This appeal arises from a decree of the First Class Subordinate Judge of Nasik in a suit to enforce what is described as the right of the heirs of a Mohammedan widow to retain possession of her husband's estate in lieu of her unpaid dower. The suit has been instituted by the assignee of some of the heirs of the father of the deceased widow. The facts, which are material for the present purpose, may be shortly stated.
2. The estate in suit, which consists of agricultural lands and houses, belonged originally to one Gafar who died in 1890 leaving behind him two sons and five daughters. One of those sons was Lalsaheb, and he died in 1906 leaving behind two widows Rahimunnissa and Pyarasaheba. Rahimunnissa is alive, and was defendant No. 17 to this action. Pyarasaheba died in 1920. The claim in this suit relates to the alleged right of Pyarasaheba to retain her husband's estate to satisfy her unpaid dower debt which, it is alleged, devolved on her heirs the plaintiff's assignors. Pyarasaheba's heir was her father who was alive at the time of her death, but died later on. The exact date of his death is not a matter of record in this case. The heirs of Pyarasaheba's father were his five children, three of whom by his first wife have assigned their interest to the plaintiff by two documents dated September 24, 1938, and January 9, 1939. In the later deed the right to recover the amount of the meher of Pyarasaheba is transferred to the assignee, and also the right to retain possession of Pyarasaheba's husband's estate in lieu thereof. In the other there is a conveyance only ' of the right in law to recover the amount of meher from Lalsaheb's estate or from his heirs.' It may be noted that the husband of the assignee plaintiff had in 1917 obtained a lease for ninetynine years of certain lands known as Gadhi lands from the two widows of Lalsaheb and the plaintiff is in possession of these lands.
3. The plaintiff alleged that Pyarasaheba's dower was fixed at Rs. 30,000 in the Nizam's currency equivalent to Rs. 24,375 of British currency, that that meher had not been paid to her by her husband, that in consequence Pyarasaheba and her co-widow were in possession of the entire estate of Gafar, including Lalsaheb's interest therein, in lieu of her unpaid dower, that Pyarasaheba's heirs continued in possession, and that there has been a valid assignment of their right to retain possession to the plaintiff. For the plaintiff it was also maintained that under the lease of 1917 there was a transfer of Pyarasaheba's and her co-widow's right to retain possession of the property comprised in the leaseholds in lieu of their unpaid dower and that the plaintiff is entitled to retain possession of the leasehold until a proportionate share of the dower was paid. It might be stated at once in that connection that the lease does not purport to transfer the widow's lien for the unpaid dower to the lessee and the plaintiff's claim in that respect cannot be sustained.
4. The contending defendants, the heirs of Gafar, disputed the entire claim of the plaintiff, and denied the allegation that there was any meher fixed or had remained unpaid. Alternatively it was also suggested that it was remitted. The important contention that was strenuously urged at the trial was that after Pyarasaheba's death her heir, the father, was never in possession of Lalsaheb's property, and that after her father's death his heirs too never entered into possession of that property. On that account it was claimed that the suit in regard to the claim to possession was not maintainable according to Mohammedan law.
5. It may be noted that the claim of the plaintiff was of a two-fold character, first to enforce the right of her assignors to succeed to that portion of the estate of Lalsaheb to which his widow Pyarasaheba was entitled to succeed as his heir, and secondly to enforce the alleged right which had descended to the heirs of Pyarasaheba to retain possession of Lalsaheb's estate in lieu of the unpaid dower. In regard to the former claim, the learned trial Judge has given a declaration in favour of the plaintiff that she, as assignee from the three brothers of Pyarasaheba, was entitled to get 5 1/9th pies in a rupee by partition. There are no cross-objections against that part of the decree. On the other part of the case the learned trial Judge held that Pyarasaheba's meher was fixed at Rs. 30,000, that it was not paid nor remitted, but that as the heirs of Pyarasaheba were never in possession of any part of the estate of Lalsaheb in lieu of her unpaid dower, since her death in 1920 both the claim to the meher as well as the claim to the estate were barred by limitation. Consequently the plaintiff's claim to retain possession or to recover possession by separation on partition was dismissed. Against that decree the plaintiff has filed this appeal.
6. It has not been disputed before us that the widows of Lalsaheb were in possession of the entire estate of Gafar till 1920 when Pyarasaheba died, and that since then defendant No. 17, Rahimunnissa, has continued in actual possession of the estate. As to the character of Rahimunnissa's possession this is what Rahimunnissa has stated in her written statement (Exhibit 79) :-
After Lalsaheb's death his properties were in my and Pyarasaheba's possession, and we two were making vahiwat of the properties and taking the produce.
Pyarasaheba is dead and her heirs are Gulam Jilani, Mohamed Saheb, Gulam Mohiddin and Abdul Gafur. After Pyarasaheba's death, the said, heirs and myself are in possession, and we all are jointly making vahiwat by mutual consent.
Accordingly she admitted the plaintiff's claim to a share on partition. It is urged upon that admission that Rahimunnissa's possession was that of a co-tenant and not hostile to Pyarasaheba's heirs and the plaintiff's claim was erroneously held to be time-barred. It was also said that the evidence as to the plaintiff's assignors' participation in the profits has not been properly appreciated. The finding as to the amount fixed for the meher of Pyarasaheba has not been disputed before us; nor was the finding questioned that it was not remitted by Pyarasaheba during her lifetime. The controversy has centered round the question whether Pyarasaheba's heirs were ever in actual possession, and if not, whether Rahimunnissa's possession was of a representative character.
7. On the question of possession it is unfortunate that Rahimunnissa, who alone could have supported the statements in her written defence from her personal knowledge of the events and facts, has not been examined in the Court below. The right of the heirs of Gafar to recover possession of this estate from Lalsaheb's widow was asserted in 1925 in a suit by some of the heirs against Rahimunnissa and others. In that suit Pyarasaheba's heirs were not impleaded; but it terminated in favour of Gafar's heirs in or about 1935. The significance of that litigation lies in the fact that the heirs of Gafar asserted their claim to the inheritance of Gafar on the ground that only Rahimunnissa was in possession of the entire estate to the exclusion of the rest. Unquestionably the finding in that suit could not conclude the issue so far as the present plaintiff is concerned. But the learned trial Judge has referred to the date of the termination of that litigation to show that the documentary evidence of possession produced by the plaintiff bears the date subsequent to the final decision, and is, therefore, suspicious. For instance, certain receipts were produced by the assignors of the plaintiff, who were living in the Nizam's territory, showing that they regularly received their share of the rent of the lands from Rahimunnissa. The receipts are produced along with Exhibit 120 and they are passed between July 1936 and June 1939. Those receipts should normally have been in the possession of Rahimunnissa, and it has not been satisfactorily explained under what circumstances they were given into the possession of the plaintiff. The learned trial Judge has stated that 'These receipts are unstamped and unregistered and their genuineness is not beyond suspicion, particularly as those receipts were produced not by Rahimunnissa but by the present plaintiff.' It is difficult to resist the force of that reasoning. Two of the assignors Gulab Jilani and Gulam Mohiddin were examined to prove that they recovered annually their share of the rent. Gulab Jilani (Exhibit 112) stated that 'three brothers in all realised Rs. 15,' But in his cross-examination he was unable to give any details of the lands or their approximate income. He stated that 'my brother knows these matters, and he used to bring Rs. 15 only.' No accounts are maintained by them and it is difficult to test the veracity of the statement. The other brother Gulam Mohiddin (Exhibit 116), beyond saying that he executed the three receipts, was unable to say on what basis the share in the produce was ascertained. He says :-
I do not remember about rents of Kavanai lands or Morwadi lands.
I never paid assessment, I do not know about the income of Gadhi property.
There is not a single receipt produced between 1920 and 1936, and no explanation is forthcoming in regard to that omission.
8. There is another piece of evidence which consists of receipts obtained by the plaintiff in regard to the payment of rent of Gadhi leaseholds after the death of Pyarasaheba in 1920. I might refer to Exhibits 122 and 123. One of them purports to have been executed by Rahimunnissa on behalf of Pyarasaheba. Even those receipts are subsequent to 1935 and there is no explanation of that statement therein. Neither is there any explanation why the rent was not remitted direct to Pyarasaheba's heirs or receipts obtained from them. In that connection it is necessary to refer to the conduct of Rahimunnissa. She has dealt with the other property as if she was the sole person interested in it. She effected a mortgage of the house at Nasik and leased lands at Morwadi in 1924 for a long term. That militates against the assertion of Rahimunnissa in her written defence that she was acting in a representative character on behalf of the heirs in certain respects, and that her possession was not only in recognition of the rights of the heirs but on their behalf. Upon that evidence, we are not satisfied that Pyarasaheba's heirs were ever in possession of those properties.
9. There is another piece of evidence which cannot altogether be ignored, and that consists of the extracts from the Village Record relating to the Kavanai lands. These lands stood solely in the name of Rahimunnissa, and there is no mention of Pyarasaheba's heirs as joint occupants of those lands. There is no evidence whatsoever that Pyarasaheba's father and heir was ever in possession after her death. In these circumstances we feel no hesitation in accepting the considered conclusion of the learned trial Judge that the heirs of Pyarasaheba were never in possession of these lands, and that the evidence furnished by the plaintiff is unreliable and probably obtained in collusion with Rahimunnissa.
10. In that view of the facts there is very little difficulty in the application of the law as to dower and the right of a widow's heirs to retain possession of her husband's estate under the Mohammedan law in lieu of the unpaid dower debt. Rahimunnissa's possession was not that of a co-tenant for the possession of a co-widow in Mohammedan law, in lieu of her dower, does not represent the possession of the other widow or her heirs. The possession is assumed in her own personal and independent right. Consequently Rahimunnissa's possession' could not be regarded even constructively as the possession of the plaintiff's assignors. Assuming that Rahimunnissa during recent years had allowed the heirs of Pyarasaheba to participate in the income of the property, the question is whether the present suit is maintainable. Now the first prayer in the plaint is to the following effect :-
(a) The share of the deceased Pyarasaheba in the' suit property be separated on partition and possession thereof be given to the plaintiff.
(c) In case the Court finds that the defendants have taken possession, then the suit amount of Rs. 10,000 be recovered from all the defendants in proportion to their share and paid to the plaintiff.
There are other prayers in regard to the liability of the defendants to pay the meher debt and so forth. But the above are the principal prayers, and it is not denied that some of the property is in the possession of the defendants, the heirs of Gafar. It is possible to suppose that the two widows retained possession, at least, so far as their husband's share in the estate of Gafar was concerned, in lieu of their unpaid dower. Indeed it is true that they were in possession of the entire estate of Gafar. But it is conceded that there is no evidence that the father-in-law Gafar had undertaken to pay the dower, or that the marriage had taken place during his lifetime. Therefore the widow's right to retain possession could only be restricted to the share of Lalsaheb in Gafar's estate. What is the precise nature of that right ?
11. As pointed out in Hamira Bibi v. Zubaida Bibi according to Mohammedan law (p. 301) :-.the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that if she lawfully with the express or implied consent of the husband, or his other heirs, obtains possession of the whole or part of his estate, to satisfy her claim with the rents and issues accruing therefrom, she is entitled to retain such possession until it is satisfied.
Their Lordships then proceed to say as follows (p. 301) :-
This is called the widow's lien for dower, and this is the only creditor's lien of the Mussulman law which has received recognition in the British Indian Courts and at this Board.
12. I shall assume that Pyarasaheba was entitled to retain possession of her husband's estate, and did retain such possession during her lifetime. The question then is whether the right to retain possession had devolved on her heirs, and, if so, whether the latter's assignee can successfully institute this action to recover possession which according to our finding they had not obtained immediately after Pyarasaheba's death. This Court in Majidmian Banumia v. Bibisaheb Jan I.L.R. (1915) 40 Bom. 34 held that the right of retention is heritable. There one Nanumiyan, a Sunni Mahomedan, who possessed a house, died in 1897 leaving behind two widows, one daughter and one brother. The senior widow's children and the junior widow alleged that they were in peaceful possession of the house until 1908, when the brother of the deceased disputed their claim to retain possession. It was found as a fact that the junior widow and the children continued to have possession, of the house after the death of the senior widow until the dispute arose between the parties, and that their possession of part of the premises was disturbed after the plaint was filed. It was held that the heirs of the senior widow were entitled to remain in possession of the estate until the dower debt was satisfied, as the right was a heritable right. There are observations in the judgment which seem to follow the view expressed in Azizullah Khan v. Ahmad Ali Khan I.L.R. (1885) All. 353 that the right to retain possession is a substantial right, and that the right being a real one, the heirs of the' widows were entitled to recover possession if wrongfully deprived thereof. The question is whether those observations afford authority for the view that the widow has a title to the property, so that the widow can claim not only a right to retain possession' of the property of which she had obtained possession, but if she were dispossessed, she or her heirs could sue for recovery of its possession on the basis of her title. There is no other direct authority supporting those observations.
13. There is a good deal of conflict of judicial view on the question whether the right of the widow amounts to a title so as to enable the heirs to recover possession by suit. The point was recently considered in Mashal Singh v. Ahmad Husain I.L.R. (1927) All. 86. There it was pointed out, relying upon Ali Bakhsh v. Allahadad Khan I.L.R. (1910) All. 551, that the lien of a Mohammadan widow over property, on account of dower debt, only operates so long as she remains in possession of the property, and on being deprived of possession, she has a right, independently of her lien, to recover possession within six months under the Specific Relief Act. It was observed that the lien does not give a right to recover possession if it should be lost. The view expressed in Azizullah Khan v. Ahmad Ali Khan (supra) which was referred to in argument does not seem to have been approved.
14. There are indeed observations in 'Majidmian Banumian v. Bibisaheb Jan which might imply that the right to retain possession being an incident of the claim to dower would entitle the heirs to maintain a suit to recover possession if they were dispossessed. Those observations, in my opinion, were not necessary for the actual decision of the appeal and cannot serve as an authority. The balance of authority in India whilst in favour of the view that the right of the widow is a transferable right, does not support the view that the widow has a title to the property which she or her heirs can enforce at law by maintaining an action for possession. The sharp conflict of views is evident from cases such as Ali Baksh v. Allahadad Khan, Amir Hasan Khan v. Muhammad Nazir Husain I.L.R. (1932) All. 499, Abdulla v. Shams-ul-Haq I.L.R. (1920) All. 127 and Beeju Bee v. Syed Moorthiya Saheb I.L.R. (1919) Mad. 214. In Ali Baksh v. Allahadad Khan one Izzat-ul-lah died leaving him surviving a widow to whom dower was due. The widow got into possession in lieu of her dower, and after her death her heirs, the plaintiffs, took possession and had their names recorded in the revenue papers. The defendants,' the heirs of the husband, objected, and the plaintiffs brought the action for a declaration that their possession, as heirs of the widow, was lawful and could not be disturbed till the dower debt was satisfied. It was held that the right was not only heritable but also transferable. On that point only the view expressed in Azizullah Khan v. Ahmad Ali Khan (supra) by Mahmood J. was approved. In Beeju Bee v. Syed Moorthiya Saheb (supra), an alienee from a Muhammadan. widow, who had made an alienation to satisfy the dower, was held entitled to retain possession until that dower was paid off. The case of Amir Hasan Khan v. Muhammad Nazir Husain (supra) is an authority for the view that a claim to unpaid dower debt is an actionable claim as defined in Section 3 of the Transfer of Property Act, 1882, and that there is nothing to prevent the widow, in possession of her husband's property in lieu of her dower debt, from suing for a simple money decree in respect of the unpaid dower, or from validly assigning the dower debt. The conflict of authority as to whether the right to retain possession can be transferred without transferring also the dower debt was recently brought to the notice of the Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad and their Lordships expressed a doubt as to whether the assignment by the widow both of her dower debt and the right to hold possession of her husband's estate until that debt was paid could be properly done. Sir Dinshah Mulla in his treatise on the Principles of Mahomedan Law, (11th Ed. at page 229), in reference to that expression of doubt of the Judicial Committee has observed as follows :-
All that can now be said with certainty is that the right to hold possession is heritable. Though it cannot be said with certainty whether it is also transferable, the balance of authority in India is in favour of the view that it is also transferable.
It seems to me upon that balance of authority that the assignment in favour of the plaintiff is valid.
15. The question still remains what is the nature of the right that the plaintiff has acquired As I have said, the deeds themselves confer on her the right to retain possession of the property which Pyarasaheba possessed and which she enjoyed. But the greatest difficulty is whether by reason of that assignment, the assignee could recover possession of the estate which the assignors did not possess. The widow's right is essentially a right to retain possession which she has obtained and not to obtain possession in the exercise of that right. If, therefore, the widow could not recover possession, if she did not obtain possession or were dispossessed, except by a possessory suit under Section 9 of the Specific Relief Act, 1897, her heirs or transferees undoubtedly could not acquire a higher right. And it cannot be suggested that a title to the property exists in the widow or her transferees. Her right is merely to retain the possession of the estate. If she loses possession or if she has never acquired possession, her lien is completely lost. So also if the heirs have never acquired possession or lost their possession, they cannot claim a right to obtain, or regain it. In that view of the decided cases it is wrong to say that the right of the widow, which is descendible to her heirs, creates a title in them to recover possession of the estate of the widow's husband from his heirs. I think therefore that the lower Court's conclusion is correct and must be upheld' and this appeal dismissed with costs.
16. I wish to add some observations on the law point in this case. The right of a Mohammedan widow to retain possession of her husband's property, which she has lawfully obtained, has been held to be a heritable right in Majidmian Banumian v. Bibisaheb Jan I.L.R. (1915) 40 Bom. 34. In the same case the view has been expressed that if the widow or her heirs are wrongfully dispossssed, she or they can sue to recover possession. But the widow's right only arises when 'possession is obtained. As was held in Hamira Bibi v. Zubdda Bibi she is only in the position of an unsecured creditor, subject to this that. she is entitled to retain the property lawfully in her possession. She has no right to sue for possession, if she never had it. Prima facie it would seem to follow that the widow's heirs, unless they follow her immediately into possession and are subsequently dispossessed, cannot sue to recover possession. So that what is heritable would be merely the right to retain possession. The heirs cannot inherit more than the widow herself had. Majidmian Banumian v. Bibisaheb Jan was not a suit for possession at all. The findings of fact were that the plaintiffs, who were the heirs of the widow, had possession of the property for a long period of years after the death of the widow right up to the date of the suit. In respect of a portion of the suit house only their possession had been disturbed after the plaint was filed. The decree of the trial Court declared the right of the plaintiffs to retain possession and restrainthe defendant from obstructing the plaintiffs in retaining possession of the house which was already in their possession. This Court in appeal confirmed that decree. So that the observations as to the right of the heirs to bring a suit in case of dispossession were really obiter dicta.
17. Some difficulty is caused by the case of Azizullah Khan v. Ahmad Ali Khan I.L.R. (1885) All. 353 where Mr. Justice Mahmood, who delivered the judgment of the Court, held that a Mohammadan widow lawfully in possession of her husband's estate occupies a position analogous to that of a mortgagee, whose possession cannot be disturbed until her dower-debt has been satisfied, and that her heirs are entitled to succeed her in possession of the property. The heirs in that case never had possession. But so far as we are aware, this is a solitary authority to that effect. In Ali Bakhsh v. Alldhadad Khan I.L.R. (1910) All. 551 the case seems to have been treated merely as authority for the proposition that the widow's right to retain possession is heritable, and in Mashal Singh v. Ahmad Husain I.L.R. (1927) All. 86 it has been laid down quite clearly that the widow's lien gives her no title, or right to recover possession, but only a right to retain possession, and the same thing applies to the heirs.
18. Having regard to the nature of the widow's right, I am disposed to think that the correct view must be that neither the widow herself nor her heirs can bring a suit on the basis of the lien, which gives no title to the property, and the only maintainable suit is one based on possession and dispossession. Whether the suit is one to which Article 142 of the Indian Limitation Act would apply, as apparently held in Majidmian Banumian v. Bibisaheb Jan, or an ordinary possessory suit under the Specific Relief Act as held in Mashal Singh v. Ahmad Husain, is not a point which we have to determine in this case. As Pyarasaheba's heirs never had possession, they have never been dispossessed.
19. As my learned brother has pointed out, there is a balance of authority in India in favour of the view that the widow's right is transferable either along with the right to her dower (Amir Hasan Kkan v. Muhammad Nazir Husain I.L.R. (1932) All. 499 or without it (Abdulla v. Shams-ul-Haq I.L.R. (1920) All. 127 and Musammad Sogia v. Musammat Kitaban I.L.R. (1927) Pat. 141. In that connection Beeju Bee v. Syed Moorthiya Saheb I.L.R. (1919) Mad. 214 may also be referred to. This cannot be regarded as settled law in view of the fact that their Lordships of the Privy Council in Maine Bibi v. Chaudhri Vakil Ahmad have expressed a doubt as to whether the widow can assign either her dower-debt or her right to hold possession of her husband's estate until the payment of that debt. But assuming for the sake of argument that there is a right of transfer, it can only be, I think, in respect of possession actually enjoyed. If there is no right to sue for possession in the first instance either in the widow or her heirs, obviously no right of that kind can be transferred. As we hold on the evidence that Pyarasaheba's heirs never had possession, the plaintiff acquired nothing by the transfer to her and would have acquired nothing even if the transfer had been complete and in the proper form, as to which I think there is considerable doubt.
20. Even if it were possible to take the other view based on Azizullah Khan v. Ahmed Ali Khan that the heirs had a right to sue which they transferred to the plaintiff, it would still have to be held I think that the plaintiff's suit is barred. Possession has throughout been with the other widow Rahimunnissa, and her possession must be regarded as adverse. It was contended that Rahimunnissa was in possession for herself and for the heirs of her co-widow. That, no doubt, is what she herself says. But in the absence of corroborative evidence during the long period from 1920 to 1936, and in the absence of any reliable evidence even after that, this statement of hers cannot be accepted. She has, of course, nothing to lose by what she says now. It cannot be said that as a tenant-in-common she represented the heirs of Pyarasaheba, for the rights of the widows would be independent rights and each would be entitled in her own right to retain possession of the whole property.
21. The land in Nasik called the Gadhi land stands on a different footing from the rest of the property, as this was leased by the two widows to the plaintiff while they were in possession. It is possible that they could have transferred the right to remain in possession till payment of the dower-debt, and in that case the plaintiff would halve been entitled to retain possession till she was paid a portion of the dower proportionate to this part of the estate. But, to my mind, it is not dear that this right has in fact been transferred. No doubt in the preamble to the lease (Exhibit 121) the widows stated that the 'property was in their possession on account of their meher dues. But in the operative part of the deed nothing is said about the right to retain possession till payment of the dower. The widows transferred to the plaintiff all those rights which they had as owners. They were in fact owners of the property, in part at any rate, as heirs. But in respect of their dower their rights were not rights of ownership, but only a sort; of lien. It appears, therefore, that there were many difficulties in the way of the plaintiff's claim, and I. agree with my learned brother that the appeal should be dismissed with costs.